The process commencing this action, originally instituted before a justice, summoned the defendant to answer the complaint of the plaintiff Grant in a civil action “for the recovery of money for damages,” in which the plaintiff demanded judgment for $300.00 with interest and costs according to law. The transcript from the justice’s docket shows that the plaintiff “filed his complaint, items of damages sustained to the amount of $300.00.” This complaint is as follows:
“J. O. Grant vs. J. E. Wyatt.
Bill of Particulars. 1902.
To preparing 65 acres of land on ‘Oak Cottage Farm’near Charlestown, Jeff. Co., W.Va., for wheat. $ 27 34
To 1-3 of 65 acres wheat at 16 bus. per acre, 1040 bus. 346 2-3 bus. at 70c per bus. 242 66
To plowing 50 acres for corn, 30 days at $1.... 30
Total. $300'00”
The defendant pleaded non-cossumpsit and set-offs. The trial resulted in judgment for plaintiff for $143.97 with interest and costs. The defendant appealed to the circuit court of Jefferson county. The appeal bond, with Ellen Wyatt as surety, was in the penalty of $287.94, double the amount of the judgment, and was conditioned that appellant would perform and satisfy the judgment of the circuit court on such appeal. In the circuit court the appellant demurred to' the appellee’s cause of action as in the record set forth, which demurrer was overruled, and appellant pleaded the general issue and set-offs. Appellant’s motion to set aside the verdict and in arrest of judgment was overruled, and judgment
The first matter presented is the demurrer. The statute does not expressly provide for a formal demurrer in an action, before a justice, but does provide that either party may except to a pleading of his adversary when it is not sufficiently explicit to be understood, or it contains no cause of action,, or defense. Sub-section 6, section 50, chapter 50, Code 1906. A demurrer has been said to be an objection that the pleading against which it is directed is insufficient in law to support the action or defense. 6 Am. & Eng. Pl. & Pr. 296; Tyler v. Hand, 7 How. (U. S.) 581. The word “except,”' as used in the statute, is synonymous with the word “object.” The demurrer being an objection to the pleading, it follows that it may be interposed by the defendant to the plaintiff’s complaint, in lieu of an exception, and when interposed it will be treated as an exception to the complaint.
This brings us to the question as to the sufficiency of the appellee’s complaint. The pleadings in a justice’s court may be oral or written. The trial upon an appeal may be upon the pleadings filed before the justice, or upon new or amended pleadings. Poole v. Dilworth, 26 W. Va. 583. Ho formality in the pleadings is required. If they state a cause of action or defense, as the case may be, in such a manner as to-enable a person of common understanding to know what is-intended, they are sufficient, however awkward or informal they may be. Subsection 5 of said section 50; Davis v. Trump, 43 W. Va. 191; Jones v. Browse, 32 W. Va. 444. So much of the summons as states a cause of action is to be considered as a part of the complaint. O’Connor v. Dils, 43 W. Va. 554; Longacre Colliery Co. v. Creel, 57 W. Va. 347; Fouse v. Vandercort, 30 W. Va. 327. The complaint re
The appellant and his surety assign as error the action of the court in refusing a new trial, claiming that the evidence was insufficient to support the verdict, and that there was a variance between the evidence and the complaint. This assignment of error involves a consideration of the evidence, and we do not find that all of the evidence was certified by the court below. At the time of the entry of the judgment, leave to file a bill of exceptions certifying all of the evidence was taken, but the bill of exceptions afterwards filed does not contain a certificate that the evidence embraced in the bill is all of the evidence adduced upon the trial. Under these circumstances, we must presume that there was evidence which supported the verdict. Dudley v. Barrett, 58 W. Va. 235; State v. Ice, 34 W. Va. 244; Edgell v. Conway, 24 W. Va. 747.
The appellant and his surety claim that the judgment is void, or at least erroneous and prejudicial to them. When the verdict was rendered, the circuit court was presented with an anomalous situation, one which we apprehend rarely occurs. The verdict was for $300.00; the penalty of the appeal bond was $287.94; the penalty had been fixed in accordance with the statute. ■ Section 172, chapter 50, Code 1906, provides that, “when the judgment appealed from is against the appellant for any sum of money, and an equal or greater sum is found due by the appellant, judgment shall be rendered by the circuit court against the appellant and those who signed the bond first named in section one hundred and sixty-four, if such bond be given, for the sum due, including interest and costs up to the time the appeal was taken, with damages on the aggregate at the rate of ten per cent per an-
No question as to interest and damages under said sec. 1Y2 is raised in this case. The appellee did not claim such interest and damages, even if he were entitled to them (which we do not now decide). If it had been claimed that the surety on the appeal bond was liable for interest or interest and damages, in addition to the penalty of the bond, it might be said that the breach of the condition of the bond occurred eo instanti with the entry of the judgment. Judgment, was entered against the appellant and his surety on the appeal bond for $300.00, the amount of the verdict,- and costs, and the appellee was allowed to file a remittitvn* or release of the judgment as to the surety for the excess above the penalty of the bond. Is not the effect of that judgment substantially the same as a joint judgment for the amount of the penalty of the bond against the appellant and and his surety, and an additional judgment against the appellant for the residue of the verdict and costs? It seems to us that it is. While the judgment is joint, it released as to
For the reasons stated the judgment is affirmed.
Alffirmed.